Submission to the Royal Commission into Aged Care Quality and Safety Revocation of accreditation: What if the approved provider just shrugs?

Introduction

This brief submission was prompted by the twin nursing home debacles in July and August 2019, involving the Earle Haven nursing home and the Bupa Eden nursing home.

The Earle Haven nursing home debacle was a case where a provider simply walked away from providing care.

The Bupa Eden case was a case where a provider was told to walk away, but just shrugged and refused.

This submission will not discuss the Earle Haven case beyond signalling (herewith) that a provider felt they could do what they felt like without fear of regulatory repercussions.

The Bupa Eden case is very similar in that the provider, confronted with revocation of its accreditation, stared down the regulator, who hastily cancelled what it had planned to do.

The Bupa Eden case has not received much public attention, but the implications for the aged care compliance regime are as serious and significant as the implications of the Earle Haven case, which is being separately investigated by Ms Kate Carnell.

This submission offers an analysis of the Bupa Eden saga.

Bupa Eden chronology

The Bupa Eden nursing home was audited by the ACQSC’s predecessor from 31 July 2018 to 10 August 2018 and failed to meet five expected outcomes. On 6 September 2018 a finding of serious risk was made in relation to one failure. The home was given accreditation until 27 February 2019.

After an assessment contact conducted on 26 – 28 February 2019, the ACQSC found that Bupa Eden failed to meet 22 expected outcomes in the Accreditation Standards in relation to Bupa Eden. Two failures had placed the safety, health or wellbeing of a resident in the service at serious risk.

Following an audit on 13 and 14 March 2019, the ACQSC decided that Bupa Eden failed 30 out of 44 expected outcomes. Two failures had placed the safety, health or wellbeing of residents in the service at serious risk. On 16 April 2019 a decision was made to revoke accreditation of Bupa Eden as per 16 August 2019.

Just four-and-a-half months later, Bupa Eden applied for reaccreditation. On 7 August 2019, the local paper, the Eden Magnet, quoted a Bupa Eden spokesperson:

“We’ve applied for reaccreditation as we believe we are making progress in many areas. “Improvements are underway, we have recruited multiple assistants in nursing, an additional registered nurse, recreational activities officer, maintenance officer and a physio-aide to support our physiotherapist. We’re also reviewing our resident care plans, and bolstering our training and education for clinical, kitchen and laundry staff.”[1]

On 16 August 2019 at 5.47pm, the Eden Magnet, reported that Bupa Eden had been re-accredited: “In news just in, Bupa Eden reports it has been successful in its application for re-accreditation.”

The Magnet did not just rely on the local Bupa spokesperson but had confirmed with the ACQSC:

“Aged Care Quality and Safety Commissioner Janet Anderson confirmed following an unannounced site audit at the aged care service, the decision was made to accredit the service for a period of six months. The accreditation will expire on February 16, 2020. ’In making the decision about the service’s accreditation status, the commission noted the service has made progress in rectifying previously identified non-compliances’, Ms Anderson said. ‘The decision to accredit also included placing Bupa Eden on a ‘Timetable for Improvement’ to enable it to continue working towards full compliance.’”[2]

Just how close to the wire re-accreditation had been run is demonstrated by the fact that a little over five hours earlier that same day (16 August 2019, 12.25 pm), the Magnet had reported that Bupa intended to continue operating its Eden facility if its accreditation expired at midnight, citing a Bupa spokesperson, who also clarified that, while Bupa Eden would lose its Government subsidies, it would not have to refund the accommodation bonds collected from residents because Bupa Australia would continue to be an approved provider: “Having accreditation revoked at Bupa Eden means the home will lose government funding until the home is re-accredited. Bupa would however still be an approved provider and Bupa Eden would continue to provide residential care.”[3]

The decision to re-accredit Bupa Eden was transmitted between the ACQSC and Bupa Australia on the day Bupa Eden’s accreditation was to expire as a result of revocation.

Discussion

It is not publicly known why the ACQSC made a decision to revoke Bupa Eden’s accreditation. The decision was made in respect of failures dating back to August 2018 and failures which manifested themselves subsequently. There is no evidence to suggest that this was anything other than an entirely straightforward decision based on solid evidence and in accordance with relevant legislation and ACQSC’s policies and procedures

Prior to the decision by the ACQSC to revoke its accreditation, the Bupa Eden nursing home had had a chequered career as suggested by the chronology provided above. The initial response to the findings of eight failures during the July/August 2018 audit of Bupa Eden was simply inadequate, as demonstrated by the findings of 22 failures during a second investigation in late February 2019. Not even the findings of the second investigation prompted Bupa, either at the local or the corporate level, to take non-compliance at its Eden facility seriously. Just two weeks later, the quality of care at Bupa Eden had collapsed even further, to 30 failures.

What Bupa Aged Care Australia Pty Ltd effectively did at Bupa Eden was to ignore the findings of non-compliance. Speculating as to why this happened, perhaps Bupa felt that it had fallen victim to the zeal of the new regulator, the ACQSC, and the findings of non-compliance that were raining down on Bupa facilities throughout Australia (and on facilities belonging to other approved providers), and it perhaps took the approach of wanting to ride out the storm. Obviously, if Bupa was going to fix non-compliances at all its facilities decisively, this was going to require a financial commitment and it is possible that Bupa took a wait-and-see approach for that reason.

Bupa Australia owns and operates 72 nursing homes in Australia. Just under half of these nursing homes have recently been or are currently under a non-compliance cloud.[4]

CPSA asserts that this is revealing of a corporate culture which encourages if not mandates the cutting of corners in care provision in order to keep costs to a minimum. A stark indication of this was provided by evidence given on behalf of Bupa Australia to the Royal Commission into Aged Care Quality and Safety. A resident was found by her two daughters in acute and severe respiratory distress, and it took more than 30 minutes to find staff to deal with the situation. Bupa’s evidence was that the home in question had not been understaffed when the incident occurred.[5]

It is within the context of Bupa as a serial offender in the area of aged care quality and safety and as a firm believer in the primacy of cost-efficiency over corporate reputation that the Bupa Eden accreditation events need to be understood.

Two statements quoted in this submission stand out:

“Having accreditation revoked at Bupa Eden means the home will lose government funding until the home is re-accredited. Bupa would however still be an approved provider and Bupa Eden would continue to provide residential care” (Bupa).

“The decision to accredit also included placing Bupa Eden on a ‘Timetable for Improvement’ to enable it to continue working towards full compliance” (ACQSC).

Reading these two statements together, CPSA asserts that the aged care regulator capitulated to a powerful provider with 72 nursing homes and 7,400 nursing home residents under management, a provider who has basically shrugged every time it has been hit with compliance action and the provider shrugged even when threatened with the loss of accreditation for one of its homes, stating it would continue operating the nursing home.

CPSA asserts that:

This provider believed that if it continued operating the nursing home, the regulator would not be in a position to let the loss of accreditation for this nursing home take effect.

If the regulator were to have done so, it would have had no further control over what happened at the Bupa Eden nursing home. The regulator could have investigated complaints to it about Bupa Eden, but could not have taken action, except for revoking the accreditation of Bupa Aged Care Australia Pty Ltd as an approved provider. Loss of accreditation as an approved provider would have meant that 72 nursing homes and 7,400 nursing home residents would have faced an uncertain fate. This would have meant a national crisis.

The provider knew this and was therefore never worried about the loss of accreditation for Bupa Eden.

If the regulator wanted to retain any control, it would need Bupa Eden to continue as an approved service. It could not take the reputational risk of having to countenance further breakdowns in quality and safety at Bupa Eden while being officially almost powerless and effectively completely powerless to do anything about it.

Rubbing it in, the Bupa Eden spokesperson also very helpfully pointed out that, apart from the regulator, its residents had no choice but to stay with Bupa Eden: “In these circumstances, there is no requirement to return the balance of refundable accommodation deposits if we lose accreditation.”[6] Return of refundable accommodation deposits, or nursing home bonds, would only arise if Bupa Aged Care Australia Pty Ltd lost its accreditation as an approved provider.

In that light, the statement by Commissioner Anderson of the ACQSC is telling: “The decision to accredit also included placing Bupa Eden on a ‘Timetable for Improvement’ to enable it to continue working towards full compliance.”

The Commissioner concedes that Bupa Eden, having lost its accreditation for non-compliances it had not been able or willing to fix for an entire year, had still not fixed these non-compliances, but would be re-accredited anyway on the day it was supposed to have lost its accreditation because of these non-compliances.

The decision by the ACQSC to re-accredit an approved service is a concession that it overplayed its hand against an approved provider too big to be hit with loss of accreditation as either an approved service or indeed as a an approved provider.

Implications

According to the Department of Health’s Aged Care Service List as at June 2018, there were, in residential aged care:

4 approved providers who operated more than 5,000 places each, including Bupa Aged Care Australia Pty Ltd, who is the largest provider by a considerable margin;

These are all providers who are too-big-to-fail in that their accreditation as approved providers cannot be revoked without causing a significant, acute, nationwide crisis in residential aged care if a single one were to lose its accreditation as an approved provider.

These are all providers who, like Bupa Aged Care Australia Pty Ltd, have the critical financial mass to operate one or more nursing homes without receiving care subsidies for a while. These are all providers that can threaten to do this, putting the ACQSC in a position to countenance temporarily losing oversight of the nursing home or homes in question, leaving residents exclusively to the tender mercies of aged care services of proven incompetence. This would clearly be an unacceptable consequence. As a result, certainly in light of what happened with Bupa Eden, revocation of the accreditation of a single nursing home belonging to one of these providers is no longer an option for the ACQSC. The ACQSC tried but failed.

Also, these are all providers who have demonstrated an ability and in some cases a propensity to expand their residential aged care business. In other words, if the regulator revokes the accreditation of a service belonging to a smaller operator (not able to shrug off loss of accreditation), these big providers are the most likely to step in and make an acquisition, as occurred recently in the case of Ark Parramatta, which lost its accreditation and was then acquired by Anglican Community Services.

Once a failing service has been taken over by a bigger player and rehabilitated, the risk is that quality and safety will slip. Again using Ark Parramatta as an example, the NSW Nurses and Midwives Association reports that the new owner is reducing registered nurse hours by 34 per cent and carer hours by a further 10 per cent a fortnight.[8]

Anglican Community Services is too-big-to-fail. Given what took place with Bupa Eden then it would seem that loss of accreditation of the facility it acquired from Ark is no longer an option.

It should also be noted that Bupa Aged Care Australia Pty Ltd has engaged in a power play with the ACQSC about the accreditation of Bupa Eden concurrent with the Royal Commission into Aged Care Quality and Safety. While the initial sanctions were imposed prior to the commencement and announcement of the Royal Commission, the majority of the period during which Bupa Eden has been under sanction, the Royal Commission has been active. Bupa Aged Care Australia Pty Ltd has shown a remarkable unconcern about this fact in the way it has conducted itself in the matter of Bupa Eden while the Royal Commission was proceeding.

Conclusion

The current system of compliance under the Aged Care Act 1997 is to a large extent self-defeating. Sanctions tend to punish the nursing home existentially, the loss of accreditation of a nursing home being the penultimate sanction in that regard. Sanctions tend to punish blameless residents and intending residents along with the culprit, where a home is not permitted to admit new residents for a period or where it loses accreditation.

CPSA submits that, as an approach to enforcing compliance with quality and safety standards, this is counter-productive.

A better approach would be to make the penalties for non-compliance person-centred, like the care provided in nursing home is required to be. To an extent, this approach already exists. Registered and Enrolled Nurses can lose their registration and, therefore, their ability to work, if they breach their duty of care for those they care for.

Applying this principle of person-centred-ness, the regulator should have the ability to disqualify individuals from working in the industry temporarily or permanently. This should apply to all key personnel as currently defined in the Aged Care Acy 1997. This would be a far more practicable and effective way of sanctioning non-compliance in the residential aged care sector.

In addition, while not person-centred, the regulator should be given the ability to issue fines for non-compliance to corporate entities